Summary: Miss X complained the Council failed to provide suitable education for her child following their permanent exclusion from school in November 2023. We found fault with the Council failing to provide education for Miss X’s child from 30 November 2023 to 16 September 2024. We also found fault with the Council delaying outside the statutory timescales in completing an Education, Health and Care Plan Needs Assessment of Miss X’s child. The Council agreed to pay Miss X a further £4,270 for her child’s missed education. The Council also agreed to pay Miss X £800 for the frustration and anxiety caused through its delays in completing the Education, Health and Care Plan Needs Assessment up to 22 September 2024. The Council should pay a further £100 each month it continues to delay until Miss X gets her appeal rights up to a maximum of six months.

The complaint

1. Miss X complained the Council failed to provide suitable education for her child following their permanent exclusion from school in November 2023

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The Ombudsman’s role and powers

2. We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word fault to refer to these. We must also consider whether any fault has had an adverse impact on the person making the complaint. I refer to this as ‘injustice’. If there has been fault which has caused an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
3. We cannot investigate complaints about what happens in schools. (Local Government Act 1974, Schedule 5, paragraph 5(b), as amended)
4. If we are satisfied with an organisation’s actions or proposed actions, we can complete our investigation and issue a decision statement. (Local Government Act 1974, section 30(1B) and 34H(i), as amended)
5. Under the information sharing agreement between the Local Government and Social Care Ombudsman and the Office for Standards in Education, Children’s Services and Skills (Ofsted), we will share this decision with Ofsted.

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What I have and have not investigated

6. I have investigated Miss X’s complaint about the Council’s failure to provide education for Y until 16 September 2024.
7. I have not investigated any matters about the suitability of the education provided from 16 September 2024 as this would be the subject of a new complaint.

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How I considered this complaint

8. I have considered all the information Miss X provided. I have also asked the Council questions and requested information, and in turn have considered the Council’s response.
9. Miss X and the Council had opportunity to comment on my draft decision before I made my final decision.

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What I found

What happened

10. On 2 October 2023, the school which Miss X’s child, who I shall refer to as Y, attended, put in an Education, Health and Care (EHC) Plan application to the Council for Y.
11. On 20 November 2023, the school excluded Y. The school told the Council about Y’s exclusion on 22 November 2023 and confirmed Y’s exclusion was permanent.
12. The Council agreed to complete an EHC Plan Needs Assessment for Y on 8 January 2024.
13. On 20 February 2024, Miss X made a formal complaint to the Council about the lack of education for Y since November 2023.
14. The Council provided its Stage 1 complaint response on 12 March 2024. The Council said it had made a referral to a tuition provider following Y’s exclusion but had not received a response. The Council accepted it failed to provide education in a timely manner and would look to discuss a plan with Miss X. The Council offered Miss X £500 for Y’s missed education.
15. Miss X sought consideration of her complaint at Stage 2. Miss X said the Council should have provided education from the sixth day of Y’s absence and said she was struggling to meet Y’s Special Educational Needs at home.
16. On 15 April 2024, the Council issued a Stage 2 complaint response. The Council said it had spoken with Miss X about the EHC Plan Needs Assessment and was looking into what education it could provide for Y. The Council offered a further £300 for the delays and unnecessary stress and anxiety this matter had caused Miss X.
17. The Council paid Miss X £800 on 25 April 2024.
18. On 19 June 2024, the Council told Miss X it had contacted tuition providers and was awaiting a response. The Council also said it was continuing to consult with schools for a placement for Y.
19. The Council started to provide face-to-face tuition for Y through a tuition provider on 16 September 2024.

Education, Health and Care Plans

Rules and Regulations

20. A child or young person with special educational needs may have an Education, Health and Care (EHC) Plan. This document sets out the child’s needs and what arrangements should be made to meet them. The EHC Plan is set out in sections. We cannot direct changes to the sections about their needs, education, or the name of the educational placement. Only the tribunal or the council can do this. 
21. Statutory guidance ‘Special educational needs and disability code of practice: 0 to 25 years’ (‘the Code’) sets out the process for carrying out EHC assessments and producing EHC Plans. The guidance is based on the Children and Families Act 2014 and the SEN Regulations 2014. It says the following: 

• Where the council receives a request for an EHC needs assessment it must decide whether to agree to the assessment and send its decision to the parent of the child or the young person within six weeks. 
• The process of assessing needs and developing EHC Plans “must be carried out in a timely manner”. Steps must be completed as soon as practicable. 
• If the council goes on to carry out an assessment, it must decide whether to issue an EHC Plan or refuse to issue a Plan within 16 weeks.
• If the council goes on to issue an EHC Plan, the whole process from the point when an assessment is requested until the final EHC Plan is issued must take no more than 20 weeks (unless certain specific circumstances apply).  

22. Following completion of an EHC needs assessment, if the Council decides an EHC Plan is not necessary it must notify the child's parents or the young person of its decision and of their right to appeal that decision.

Analysis

23. Y’s school requested an EHC Plan Needs Assessment from the Council on 2 October 2023. The Council had six weeks from the date of this application to decide whether to complaint an EHC Plan Needs Assessment for Y. This meant the Council had until 13 November 2023 to make this decision.
24. The Council failed to decide whether to assess Y for an EHC Plan until 8 January 2024. This was 8 weeks outside the statutory timescales. This delay was fault.
25. Following agreeing to assess Y for an EHC Plan, the Council had 16 weeks from 2 October 2023 to complete this assessment. The deadline to complete Y’s EHC Plan needs assessment was 22 January 2024.
26. If the Council had decided to issue an EHC Plan for Y, it would have had until 19 February 2024 to produce this Final EHC Plan and send it to Miss X.
27. The Council failed to meet the statutory timescales for either scenarios and has not completed an assessment of Y by the date of this decision statement.
28. The Council has advised the reason for the delay in completing Y’s EHC Plan Needs Assessment is because of lack of available resources of Educational Psychologists. The Ombudsman is aware of a national shortage of Educational Psychologists causing a delay for many councils in completing EHC Plan Needs Assessments. While this explains the delay by the Council in producing Y’s EHC Plan Needs Assessment, this delay is still a service failure.
29. The Ombudsman’s approach to EHC Plan Needs Assessment delays caused by a lack of Educational Psychologists is to award £100 for each month outside the statutory timescale. The Ombudsman would recommend a council pays this award up to the point a person receives a right of appeal, reference or review. This would be the date the Council either refuses to issue an EHC Plan or issues a Final EHC Plan. The £100 per month payment is a symbolic payment to recognise the frustration and uncertainty caused by the delay.
30. The Council has failed to issue a decision letter advising whether it intends to issue an EHC Plan for Y by the date of this decision statement. The Council has delayed in doing this since 22 January 2024.
31. The Council should recognise the delay from this date with a monthly payment of £100 and continue to do so until it issues its decision about whether to produce an EHC Plan for Y. If the Council decides not to issue an EHC Plan for Y it should pay £100 per month from 22 January 2024 until it sends a letter to Miss X advising of its decision.
32. If the Council decides to issue an EHC plan for Y it should pay £100 per month from 19 February 2024 up to the date it produces the Final EHC Plan.
33. Any ongoing payments for delays by the Council after 16 September 2024 are limited to a total of six months of delays given the remit of the Ombudsman’s jurisdiction is such matters.
34. Following a recent decision by the Ombudsman in May 2024, the Council committed to completing an action plan to address the issues impacting its EHC Plan Needs Assessments caused by the lack of Educational Psychologists because of a national shortage. Within the Council’s action plan it includes reviewing ongoing recruitment and the structure of its Educational Psychologist service. It also says schools can apply for top up funding without the need for an EHC Plan to ensure any delay in issuing a Plan does not delay the appropriate support being put in place for a child.
35. The Council produced this action plan in July 2024 and the proposed actions under this action plan are still underway. It would not be proportionate for the Ombudsman to require any further service improvements at this until the Council had had suitable opportunity to implement its action plan.

Alternative Provision of education

Rules and Regulations

36. Councils must arrange suitable education at school or elsewhere for pupils who are out of school because of exclusion, illness or for other reasons, if they would not receive suitable education without such arrangements. [The provision generally should be full-time unless it is not in the child’s interests.] (Education Act 1996, section 19). We refer to this as section 19 or alternative education provision.
37. This applies to all children of compulsory school age living in the local council area, whether or not they are on the roll of a school. (Statutory guidance ‘Alternative Provision’ January 2013)
38. Suitable education means efficient education suitable to a child’s age, ability and aptitude and to any special educational needs he may have. (Education Act 1996, section 19(6))
39. The courts have considered the circumstances where the section 19 duty applies. Caselaw has established that a council will have a duty to provide alternative education under section 19 if there is no suitable education available to the child which is “reasonably practicable” for the child to access. The “acid test” is whether educational provision the council has offered is “available and accessible to the child”. (R (on the application of DS) v Wolverhampton City Council 2017)
40. We have issued guidance on how we expect councils to fulfil their responsibilities to provide education for children who, for whatever reason, do not attend school full-time. Out of school, out of sight? published July 2022
41. We made six recommendations. Councils should:

• consider the individual circumstances of each case and be aware that a council may need to act whatever the reason for absence (except for minor issues that schools deal with on a day-to-day basis) – even when a child is on a school roll;
• consult all the professionals involved in a child's education and welfare, taking account of the evidence when making decisions;
• choose (based on all the evidence) whether to require attendance at school or provide the child with suitable alternative provision:
• keep all cases of part-time education under review with a view to increasing it if a child’s capacity to learn increases:
• work with parents and schools to draw up plans to reintegrate children to mainstream education as soon as possible, reviewing and amending plans as necessary:
• put the chosen action into practice without delay to ensure the child is back in education as soon as possible.

42. Where councils arrange for schools or other bodies to carry out their functions on their behalf, the council remains responsible. Therefore councils should retain oversight and control to ensure their duties are properly fulfilled.
43. Government guidance on a council’s section 19 duties recommends councils arrange education for a child from the sixth day of absence when it is clear a child would be away from school for 15 days or more.
44. Our role is to check councils carry out their duties properly and provide suitable education for children who would not otherwise receive it. We do not have the power to consider the actions of schools.

Analysis

45. It is not the role of the Ombudsman to investigate the actions of a school. I cannot investigate the school’s decision to exclude Y.
46. I cannot find the Council at fault for failing to provide education for Y before it was made aware that Y was not attending school. As such, I cannot find the Council at fault for Y’s lost education from 20 November 2023 to 22 November 2023.
47. The law is clear that where a school does not make appropriate arrangements for a child who is missing education through illness or ‘otherwise’, the Council must intervene and make such arrangements itself. The duty arises after a child has missed fifteen days of education either consecutively or cumulatively.
48. The Council first became aware of Y’s absence from school on 22 November 2023. On this date, Y’s school confirmed it had permanently excluded Y. It would have been clear to the Council on this date that Y was absent from school and would miss more than 15 days of education.
49. The Council’s section 19 duty arose when it became aware that Y would be absent from school for more than 15 days, from the sixth day of Y’s absence. The Council had a duty to provide education for Y from the sixth day following 22 November 2023, this was 30 November 2023.
50. The Council failed to provide any education for Y from 30 November 2023 until 16 September 2024. While the Council looked into providing education for Y, through tuition or an alternative school placement, it did not make any educational provision available for Y during this time. This was fault.
51. Our guidance on remedies for a loss of educational provision recommends a payment of between £900 and £2,400 per term to acknowledge the impact of that loss. The exact figure should be based on the impact on the child. This should take into account factors such as the amount of provision put in place, a child’s individual needs and whether they are in a key academic year.
52. I have considered Y’s individual circumstances and our guidance on remedies. I consider, the Council should pay Miss X £2,000 per term for Y’s missed education. This balances Y’s loss of all education with Y’s needs. It is important to note that since Y did not have an EHC Plan by the date of this decision statement, Y has no Special Educational Needs the Council was required to meet.
53. The Council has already provided Miss X with a payment of £500 for Y’s missed education. As such, the Council should provide Miss X with a further £4,270 for Y’s missed education from 30 November 2023 to 16 September 2024.
54. The Council has already provided a payment of £300 for Miss X for the unnecessary stress and anxiety caused to her through its delays in getting suitable education for Y. This is a suitable symbolic payment in line with the Ombudsman’s guidance on remedies and I do not consider the Council should provide a further award for this.

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Agreed action

55. Within one month of the Ombudsman’s final decision the Council should:
• Provide Miss X with a payment of £800 for the delays in completing Y’s EHC Plan Needs Assessment from 22 January 2024 to 22 September 2024.
• Confirm in writing it will provide Miss X with a further financial remedy of £100 per month from 22 September 2024 to the date it sends a letter to Miss X advising it will not be issuing an EHC Plan for Y. Or, if the Council decides to issue an EHC Plan for Y, that it will provide a further financial remedy of £100 per month from 20 October 2024 until it produces the Final EHC Plan. The Council should confirm it will make either of these payments within one month of its decision not to issue an EHC Plan for Y or production of the Final EHC Plan dependent on the Council’s decision. Any ongoing payment of £100 per month is limited to six months further delays in total.
• Provide a payment of £4,270 to Miss X for Y’s missed education from 30 November 2023 to 16 September 2024.
56. The Council should provide us with evidence it has complied with the above actions.

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Final decision

57. There was fault by the Council as the Council has agreed to my recommendations, I have completed my investigation.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman